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The Supreme Court’s ruling about where a patent case can be
heard could benefit generic drug makers and hurt the makers of the original
brand, attorneys say.

When I covered the BIO IP Counsels Committee Conference in
March, discussion about the potential impact of the then-undecided case spanned
several sessions. The Biotechnology Innovation Organization (BIO), which
sponsored the conference, urged the court in an amicus brief to affirm the
flexible approach to where a lawsuit can be tried, also known as venue, that
has been the practice for the last 30 years as a result of decisions by the
U.S. Court of Appeals for the Federal Circuit.

The generic drug companies asked the high court to reaffirm
its decision from 60 years ago, which held that patent
suits can be filed only in the state where the defendant is incorporated or
where the defendant has a regular place of business. They gave as one of their
concerns that the Federal Circuit’s more flexible approach had resulted in
forum shopping—looking for the court that will more likely rule in your favor.
A reported 40 percent of patent cases have been tried in the U.S. District
Court for the Eastern District of Texas.

On May 22, the Supreme Court upheld its prior
decision. In an article on the Supreme Court decision written by Dana Elfin and
me, we quoted Guillermo C. Artiles, an associate with McCarter & English in
Washington, who told us, “Generic companies sued by biopharmas claiming the
generic drug infringes the biopharma’s patent will benefit because, of course,
they could be able to stay in their home court and not be dragged into district
courts that have rules and procedures that are foreign to them.”

Hans Sauer, BIO’s deputy general counsel for
intellectual property, told us that the number of patent cases being tried in
the Eastern District isn’t good for the development of the law but that he
didn’t think the Supreme Court’s decision would solve the forum shopping issue.
He said the decision will force brand biopharmas to file patent infringement
litigation against multiple generic defendants in different district courts,
which will increase costs and could produce different outcomes.

Artiles noted that generic companies have
also benefited from the streamlined procedures of courts like the Eastern
District of Texas and an unexpected outcome of the ruling would be that, with
protracted litigation, the brand side will have a longer time to sell their
products exclusively and at the same time there will be more of a delay in
bringing generics to market.

Others said it is too early to assess how the
high court’s ruling will affect the drug patent litigation landscape. Bloomberg
BNA will be reporting on the aftermath of the decision.

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